Registering rights derived from acts between a married person and a third party

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1. When a married person becomes the owner of a registered property, which special requirements derived from his/her civil status must be taken into consideration in order to get the new title registered in the Land Registry?

The document which updates the Registry ( the so called “nota”) must contain: the name and the fiscal code of the buyer, that is the party signing the deed; the name and the fiscal code of the seller, their civil status, the matrimonial property regime in which the acquisition falls (legal community or separation of assets) as well as the matrimonial property regime of the seller. Furthermore, the name of the spouse not comparing in the contract is to be indicated in the free section of the “nota” in order to update the cadastral owners database.

The parties must declare in the deed the information, but the notary usually requires the proof through a certificate deliverable by the Civil Register.

The spouses from another State have to previously register in the “civil status register” the act of marriage and their matrimonial property regime. Pursuant to paragraph 3 of the art. 30 of the law of 31 May 1995, n. 218 (Reform of the Italian system of private international law), the patrimonial regime between spouses governed by a foreign law is opposable to third parties only if they have had knowledge or have ignored it for their fault. With regard to real property rights, the opposability is limited to cases in which the forms of publicity required by the law of the State in which the goods are located have been respected.

2. How the registration in favor of a married person would be done? Would any interested party be able to know by checking the land registry information any restriction in the powers of the owner derived from the matrimonial property regime?

The way to register in favour of a married person depends on who performs the acquisition act signing the deed. If the marriage is under a community regime and only one of the spouses signs the deed, the name of the other doesn’t appear in the entry; in case of separation of assets the proprietor will be only one of them but the matrimonial property regime of separation is to be indicated in the entry as a personal quality of the proprietor. In both cases the information must be incorporated in the entry as a mandatory data, by flagging the related field with “C” in case of community and “S” in case of separation of assets.

Even if spouses are from another state or their matrimonial property regime is governed by a foreign law, the information related to matrimonial property regime is required as mandatory in the deed and in the «Nota»

By checking the land registry information any interested party will be able to know which the matrimonial property regime would be and to deduce if some restriction in the powers of the owner are to be taken into account by virtue of law.

There are no differences in the case of a proprietor who is engaged in a registered partnership.

3. What will the Land Registry demand from a married proprietor to register the transmission or any modification of his/her registered title?

In order to perform the transmission or any modification of his/her registered title, a married proprietor falling in a community property regime must obtain the consent of his/her spouse.

If the matrimonial property regime is not the default one but another one which derives from a matrimonial property agreement between spouses, this latter must be previously registered in the Civil register, in order for the notary to check the applicable rules and the legal requirements demanded for the transmission.

In any case the Land Registry will demand a notarial deed or a private written with signatures authenticated by a notary or a judicial decision (see art. 2657 of the civil code). Furthermore, pursuant to article 2659 of the civil code, it must be presented to the registrar the “Nota” containing all the information needed.

Practical case 1

Janos, who is married to Elena under a matrimonial economic regime of community of joint assets, buys an immovable property. He signs the deed of transfer before a local notary, acting solely and on his own, without any intervention of his wife Maria. The deed of transfer is sent to the Registry for registration.

In this case the entry will make reference to Janos’ matrimonial property regime but not to the name of the spouse. The Notary communicates, in a specific field of the “Nota”(Section “D”), the name of the spouse in order to update the cadastral database.

In case the deed says nothing about it, is presumed that Janos is not married. The matrimonial property regime of the parties in a deed of transfer must be checked by the notary.

The notary, preparing the deed of transfer, collects the information on the civil status of the parties and on their matrimonial property regime.

The registration will make reference to the matrimonial property regime of the parties if this information is included in the deed.

If Janos performs in the future a disposition act to a third party of the registered property, that information will be taken into account as always by the notary.

A future disposition performed solely by Janos to a third party would be registered, but it will not be valid and could be challenged before the judicial authority. In this case the pending litigation has to be registered in the land register in order to disclosure to interested parties this situation.

Dealing with a registered partnership, rather than a matrimonial property regime, the same rules will apply.

Practical case 2

Pierre is married to Michelle and although the matrimonial property regime established by the applicable law is a joint community one, the same law allows the spouses to modify that legal regime adopting a different one which is the property separation of assets regime, for which purpose they both sign a matrimonial property agreement modifying their matrimonial community property regime into a separation of assets one.

When Michelle buys the right of usufruct on an immovable asset, she appears on her own in the contract of sale and the transfer deed and she wants that the registration to be made in such a manner that no restriction or limitation derived from her marriage appear in the registry.

When spouses pass from a joint community regime into a separation of assets , the matrimonial property agreement is to be registered in the Civil register in which marriage has been registered.

As said before, the notary is obliged to control the matrimonial property regime of the parties, resulting from the competent civil register. So that, if a different matrimonial property agreement was adopted by the spouses, for example modifying their matrimonial community property regime into a separation of assets, the notary will take into account that circumstance and will draft the deed according to the matrimonial property regime in force at the time of the contract. So we can say that the previous registration of that agreement in the civil register is a prerequisite for the deed to be transcripted in the Land Registry.

In order to obtain the transcription in the Land Registry it will be necessary to submit to the competent land registrar («Conservatore dei registri immobiliari») the deed of acquisition of the right of usufruct and the “Nota” in which Michelle will appear as the sole acquirer of the right of usufruct, in the matrimonial property regime of separation of assets.
Dealing with a registered partnership, rather than a matrimonial property regime, the same rules will apply.